Observations on behalf of the Crown

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Before offering any remarks upon the Statement which has been prepared by the Officers of the Duchy, it will be well, by way of preface, briefly to consider what is the nature of the subject in dispute, and of the general title of the Crown, by the common law of the country, to property similarly situated in other parts of the kingdom, and what is, and must be admitted by the Duchy to be, the sole origin and foundation of the claim of His Royal Highness the Prince of Wales.

    The shores and bed of the sea, and of tidal estuaries, including the minerals lying therein, are, as it is submitted, land in the ordinary acceptation of the term, and can only pass like other real estate. In Sir H. Constable's case, 5 Rep. 107., and the Barclay case, cited by Lord Hale in his treatise De Jure Maris, p. 34., it was held that the seashore between high and low water mark may be parcel, and pass by the grant, of a manor ; and in the recent case of the Duke of Beaufort v the Corporation of Swansea, 3 Exch. 413., it was established that the seashore of a considerable portion of the county of Glamorgan passed under a grant of "terra de Gower" to a predecessor of the Duke of Beaufort.    Now, had the right of property in the seashore, as distinguished from the right of dominion or jurisdiction, been a prerogative right, it is submitted that such a right could clearly not be parcel of a manor, or have passed from the Crown without express words.   It is, therefore, conceived that (except as regards the presumption of law in favour of the Crown, to which reference will be hereafter made,) the question of title to land forming part of the bed or shore of the sea, involves the seisin of the soil and freehold, as much as in regard to land in the interior, and that a right to it must be established in the same manner.   In Scratton v. Browne, 4 Barn. & Cress. 485., the shore of the sea was regarded by the Court as land, with all its technical attributes, and as a corporeal hereditament.

"The narrow sea adjoining to the coast of England " (says Lord Hale, in the 4th chapter, of his treatise De Jure Maris,") " is part of the wastes and demesnes and dominion of the King of England, whether it lie within the body of any county or not.   In this sea the King hath a double right, viz., a jurisdiction which he ordinarily exerciseth by his admiral, and a right of proprietary or ownership ;  the latter is that which I shall meddle with." The former right, that of jurisdiction (jus publicum), is apprehended to be a prerogative right exercisable for the benefit of the public, in the protection of the navigation and fisheries, and in the suppression of nuisances.   This right, it is apprehended, cannot be divested from the Crown except by Act of Parliament. The latter right, that of property (jus privatum) is the subject to which the present question and the following observations have reference.

The foundation of the Crown's title to the property in the bed and shores of the sea, and of tidal rivers so far as the tide flows, and to the minerals therein as part of the soil and freehold, is conceived to have been the same as that of the title which originally it had in presumption of law to all other lands in the kingdom.   According to the feudal system, which regulated the tenure of real property in this country, all lands were held either immediately or mediately from the sovereign ; and whatever land at any particular time had not already been granted away by the reigning Monarch or His predecessors, remained vested in the King,-in right of His Crown, it is true, but not by virtue of any prerogative title, as generally understood.   From the nature of the land below high water, it was in early times, and, as to by far the greater part of it, is even to the present day, wholly incapable of profitable occupation ; and hence but VC.TV few grants were made of land so situate. A 2

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It has been laid down that a vacant possession of land in the interior of the country is a possession of the Crown, and the same principle arising in like manner from the tenure of land being applied to the seashore,-which is either permanently, or at all events twice in every twenty-four hours, covered with water, and is, therefore, incapable of appropriation,-has furnished a foundation for the presumption of law, which most unquestionably exists, that the shore of the sea "between ordinary high water and low water mark doth primá facie and of common right belong to the King, both in the shore of the sea and of the arms of the sea."-Hale, De Jure Maris, cap. 4 (1).   The present Lord Chancellor (Lord Cranworth), in the recent case of the Attorney General v. Chambers, 4 De Gex, Macnaughten, and Gordon, p. 206., when referring to this presumption, said : "The principle I take to be, that it (the seashore) is land not capable of ordinary cultivation, or occupation, which was described by Lord Hale as generally dry and manoriable, and so it is in the nature of unappropriated soil"  

For these reasons and upon these authorities, in corroboration of which many others may be cited, it is submitted that the seashore is land in intendment of law as well as in fact ; that the title of the Crown to all land so situate which has not been already granted away is a territorial right to the soil and freehold vested in the Crown by the common law, and a right of property, therefore, which can only be passed by instruments framed in terms apt to pass real estate, and containing either express words indicating an intention to convey it, or a general description of a territory, such as a manor, or the like, which may comprehend it, and of which it may actually be part and parcel.

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    Such being the nature of the property in question, it is proposed to consider in the next place what were the origin and foundation of the rights of the Duke of Cornwall.   These rights are derived solely from the grants of King Edward III. in favour of his son, the Black Prince, confirmed by Parliament, made long within legal memory, which are forthcoming, and which are expressed in language as clear and as precise, and as easily construed, as the most modern royal grants.   The sole question, therefore, between the Crown and the Duchy is, what, according to the ordinary rules of construction, were the true intent and meaning, the legal effect and operation, of the royal grants ?   The Duke has everything given by them, not since alienated, and nothing more.

    And although it is proposed in these observations to proceed to an examination seriatim of the several positions advanced in the statement of the Duchy, the Officers of the Crown cannot but express their conviction that the greater part of that statement has not been directed to the consideration of the real question, viz., the legal effect of the grants of King Edward III., but has substituted for it antiquarian suggestions as to the ancient status of Cornwall.

The Officers of the Crown conceive that such an inquiry must be wholly without practical result as to the question at issue, unless it can be shown that some special rules and principles of construction are to be applied to Royal grants of subjects in or connected with the County of Cornwall.

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In making such observations upon the document drawn up on behalf of the Duchy, as have occurred to the officers of the Crown on perusing that paper, or have suggested themselves in the investigation which has taken place since it was received, it is proposed that the remarks should, in the first place, be addressed specifically to the statements and arguments of the Officers of the Duchy, and that they should conclude with such as are of a more general character.

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The statement under consideration commences with a remark, that it does not appear from the case prepared on behalf of the Crown that any act of ownership on the part of the Crown has ever been exercised over the property in question, or that any other title is asserted than the primá facie common law prerogative right of the Crown in general to property of this description, and which is now asserted for the first time in opposition to the Duchy, after the lapse of many hundred years.

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    The case alluded to was a preliminary statement of the Crown's title at common law to the bed and shores of the sea around the kingdom, and at the time it was delivered it was intimated that the Officers of the Crown would wish to have an opportunity of making such observations as might be necessary upon the case of the Duchy when prepared.   It is believed that it is wholly inconsistent with the practice pursued in similar cases in courts of justice in this country, to give any evidence in the first instance in support of a primá facie right existing by the law of the realm, the burden of proof resting with the person disputing that right to shew either that it has no application to his particular case or that he has a derivative title from the owner of such right or one of his predecessors.   After such proof is given as the adverse claimant is able to adduce, it then is at the option of the primá facie owner either to contend that the evidence given is not sufficient to displace his title or to rebut by other proofs the evidence already brought forward by his opponent.   The case originally submitted on behalf of the Crown in reference to the subject under consideration was therefore, of necessity, confined to a statement of Her Majesty's title to the property in question by the common law of the land, a right which, for the reasons already given, appears to be a territorial rather than a prerogative right, and one which has been vested in the Sovereign from time immemorial, and than which, therefore, none can be more ancient, or be entitled to greater respect.   It may hereafter be requisite to consider what acts of ownership have been exercised by either the Crown or the Duchy over the property in question ; but having regard to the antiquity and nature of the Crown's right, it is submitted with much deference that it would be more accurate to say the claim of the Duchy is now asserted for the first time in opposition to the common law title of the Crown after the lapse of many hundred years, than the converse of such an allegation.

It is contended on the part of the Duchy, that this general primá facie right of the Crown has not application against the Duke of Cornwall within his Duchy or County of Cornwall, and consequently not to the particular property forming the subject of the present question ; inasmuch as that in very ancient times, long before legal memory, probably from the time when the Britons were driven bv the Saxon invasion to the extremities of the kingdom in the west, Cornwall appears to have been, like Wales, a distinct principality ; that at the time of the Conquest and subsequently it was still treated in many respects as distinct from England, and when it afterwards became an English county it still retained many, if not all, the rights of a county palatine, and was granted sometimes with more, sometimes with fewer, jura regalia to the successive Earls of Cornwall, and was ultimately granted as a Duchy when for the first time a dukedom was created in England in favour of the eldest son of the King ; and it is not to be conceived that the new title was to be attended with less dignity, power, and perogative than the Earls had enjoyed ; that the grant to the Dukes has always been construed in accordance with this view, and has been so treated, not only by the solemn resolutions of courts of justice, but also by the Legislature of the country.

    It may be observed, as to the supposed analogy between Cornwall and Wales, that from the time of the annexation of Wales to the Crown of England, the Sovereign rights of the latter over the lands and shores of Wales, and the sea surrounding the same, have been as clear and as indisputable as those over the rest of the realm ; and it has never been suggested that the creation of the Heir Apparent as Prince of Wales by Edward I. and his successors carried with it any portion of the Royal Prerogative, or Royal Property, within that principality.   Up to the time of conquest of Wales, the British Princes of that country, within such portions of it as had not from time to time been conquered by the Lords Marchers doubtless exercised all Sovereign rights, both as to jurisdiction and property ; but if the creation of the high title of Prince of Wales in favour of the Heir Apparent did not carry with it those Sovereign rights, or any of them, what becomes of the suggestion that the creation of the undoubtedly high, but inferior title of Earl or Duke of Cornwall carried with it any of the Sovereign rights of the British Prince of that territory ?

The word "Duchy" is used at the commencement of the paragraph which has been quoted at length as a word of the same import, or as expressing the same A 3

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    territory as the word " County,"  " His Duchy or County of Cornwall," and then, by an easy transition, the rest of the paragraph refers exclusively to the County.   It will, however, hereafter be shown, that while, on the one hand, in the constitution and subsequent charters to the Duchy many estates and fran chises not situate in, or in any way connected with, the County of Cornwall were granted by the Sovereign as a provision for the Heir Apparent to the throne ; so, on the other hand, there was no grant of the County, no general grant of all the estates and franchises to which the King was entitled within that County ; but a specific enumeration in detail of every particular which was to be annexed to the Duchy, not including, either by express terms, or by inference, the land which is the subject of the present question, nor indeed several other rights of the Sovereign within the County, an enumeration, moreover, prefaced by this distinct recital :  " AND LEST HEREAFTER IN ANYWISE IT SHOULD BE TURNED INTO DOUBT WHAT OR HOW MUCH THE SAME DUKE" (of Cornwall), "OR OTHER THE DUKES OF THE SAME PLACE FOR THE TIME BEING, OUGHT, TO HAVE IN THE NAME OF THE DUCHY AFORESAID, WE HAVE CAUSED ALL THINGS IN KIND WHICH WE WILL TO PERTAIN TO THE DUCHY TO DE INSERTED IN THIS OUR CHARTER :   THEREFORE WE HAVE GIVEN AND GRANTED, &c.-Char. II., Edw. III.   If the Duchy of Cornwall is not co-extensive with the County, then the whole of the statements and arguments relative to the County being formerly distinct from England, and the like, interesting as they may be, in so far as they bear upon matters of history, will become irrelevant to the question now raised.   For the present, however, it is proposed to follow the observations which have been made in the Statement of the Duchy relative to the County of Cornwall, subject to the protest in limine that the Duchy is not co-extensive with the County.

    No authority of any description is cited on the part of the Duchy in support of the contention that the general right of the Crown has not application as against the Duke of Cornwall within the Duchy or County of Cornwall.   Neither Glanville, Bracton, Horne, Fitzherbert, Rolle, Callis, Selden, Lord Hale, Staundford, Blackstone, Chitty, Hall, or so far as can be traced any other writer upon the subject (either in ancient, or in modern times), so much as hints at the exclusion of Cornwall from the territory over which the general right of the Crown and the common law of England extend.   Had any such doctrine obtained at the time when Lord Hale composed his well-known treatise De Jure Maris, it is thought he could hardly have failed to notice it; indeed his attention appears to have been expressly drawn to the rights of the Earls of Cornwall, for he says (De Jure Maris, Chapter 7.)  " the Earl of Cornwall which, though it were not a county palatine, had many royalties belonging to it,- had wreccum maris per totum comitatum Cornubiæ, viz., as against the King, though particular Lords might prescribe for it."   If the County of Cornwall had been considered exempt from the ordinary rule and presumption of law as to sea and seashores it would have been almost impossible that Lord Hale should not have mentioned the fact.

    Not only is the position contended for on behalf of the Duchy that the " general primá facie right of the Crown has not application as against the " Duke of Cornwall within his Duchy or (the) County of Cornwall,"  entirely unsupported by authority, but it is, as the Officers of the Crown submit, inconsistent with every principle, of English law.   Nor is it easy to see how the denial of the right of the Crown can in any way advance the title of the Duke. If the seashore, was not the Crown's to grant, how can the Duke, the grantee of the Crown, make any title to it, or how could the Earls of Cornwall, the feudatories of the Crown, have had any title to it ?   What right could the Duke assert against any trespasser on the seashore, but a derivative title founded on the clear original right of the Crown ?  

The suggestion of this point, therefore, if there were anything in it, would be adverse to the title both of the Duke and of the Crown.   There appears, how ever, to be really no ground for it.

    It may be true that, until about the close of the Saxon era, the County of Cornwall formed an independent Sovereignty.   From the time, however, of its conquest by Athelstan, about the middle of the 10th century, there is no reason to doubt that it became subject to the English Crown, like the rest of the kingdom ; but whatever may have been its condition or government before the Norman Conquest is no more than a matter of historical interest, so far as respects the

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present question, for from that period dates the recognition and adoption of the fundamental principle of the law of tenure in England, viz., that the King is the universal lord and original proprietor of all the lands in His kingdom.

    It need scarcely be stated that at, and after the Conquest the Norman King's made extensive grants to their retainers, and even to the Saxon nobility, to be held as honors or baronies under the Crown, and that in some instances a few of the counties of England, namely, Chester, Lancaster, Durham, and also Pembrokeshire, and Hexhamshire in Northumberland, were created Counties Palatine.

    There is no trace, however, of the County of Cornwall ever having been a County Palatine, or in the nature of a County Palatine.   Lord Coke, in his 4th Institute, p. 204., gives the following description of a County Palatine:-

    "It is called comitatus palatinus, a county palatine, not a comite in respect of the dignity of an earl, but a comitatu and palatioregis, because the owner thereof, be he duke or earl, &c., hath in that county jura regalia as fully as the King had in his palace, from whence all justice, honors, dignities, franchises, and privileges as from the fountain at the first flowed.   The power and authority of those that had counties palatine was kinglike, for they might pardon treasons, murders, felonies, and outlawries thereupon.   They might also make justices of eire, justices of assize, of gaol delivery, and of the peace; and all original and judicial writs, and all manner of indictments of treason and felony, and the process thereupon, were made in the name of the persons having such county palatine ; and in every writ and indictment within any county palatine it was supposed to be contra pacem of him that had the county palatine.   But these and some others are taken away from them that have such counties palatine and annexed to the Crown, and all writs to be made in the King's name, but the teste is in the name of him that hath the county palatine, and they shall have forfeitures of lands and goods for high treason, which forfeiture accrueth by the common law ; but for treason or forfeits given after the erection of the county palatine by any Act of Parliament they shall not have them."

    It is not suggested that any subject, either as Earl or Duke of Cornwall, ever had or claimed to have these high Sovereign rights within the County of Cornwall.

    To show that the County of Cornwall during the reign of William I. was part of the kingdom, and differed in no respect from the other counties of England, the Officers of the Crown refer to the record of Domesday Book. It seems at that time, according to the historians Ordericus Vitalis and W. D. Gumieges, for no enrolment of grants of that remote period is preserved, that amongst the titles and honors created by the King, he had created his half-brother, Robert Earl of Moreton, Earl of Cornwall, and had bestowed very great possessions on him in that County ; accordingly, in Domesday Book, this Earl is returned as holding of the King numerous manors and lands, other lands in the County being returned, some as in the King's hands, some as belonging to the Bishop of Exeter, the churches of Tavistock and St. Michael Judhail de Totness, and one Joscelin.

There is nothing in the Survey to denote any superiority enjoyed by the Earl over the other landholders of the county, nor any trace of a county palatine, nor of the county being then one great principality, honor, or seignory, of which the other manors and lands within the county were held.

    It is clear, also, from this record, that the county was part of the kingdom of England, not only at the Conquest, but in the time of Edward the Confessor, for the King's lands are confined to those which belonged to the Confessor, and the Survey also states who were the holders of the lands of the Earl and the others while the Confessor held the throne of England.

    It must be concluded, therefore, that the county was not at the Conquest distinct from the rest of England, and that the Earl of Moreton and Cornwall was then a feudatory and tenant of the Crown in respect of the manors and fees he held in the county, in the same character as he held his other possession in the kingdom.

There can, in fact, be no question but that at, and from and after, the Conquest, Cornwall was parcel of the realm of England, subject to the direct and immediate dominion and sovereignty of the King, by whom, and whose courts and judges, justice was administered there as in all the other non-palatine counties, A 4

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there being no intermediate feudal sovereignty nor palatinate, nor (as was the case in several parts of Wales) a quasi sovereign, Lordship Marcher.

   It is stated, again, that after Cornwall became an English county "it still retained many, if not all the rights of a county palatine."   As there is no authority for saying (indeed, it is not directly urged) that Cornwall ever was a county palatine, it can hardly with propriety be said to have retained all or any of the rights of a palatinate.

   The next statement, that the county was "granted sometimes with more, sometimes with fewer, jura regalia to the successive Earls of Cornwall," establishes, as it is apprehended, conclusively, first, that the Crown had jura regalia to grant ; secondly, that neither all nor any of the jura regalia so granted were by prescription annexed to the Earldom, but that they were granted by the Crown at pleasure, sometimes more and sometimes fewer, as separate franchises ; and, thirdly, that the King was entitled to them, and granted them in right of His Crown.   If they had been inherent rights in the Earldom, if they had passed by the creation of the title, there would have been no necessity for any specific grant by the Crown.   If in the successive new creations of Earls of Cornwall, "sometimes more, sometimes fewer jura regalia" were granted with the dignity, it would clearly have been necessary, in order to show what jura regalia any particular Earl of Cornwall was entitled to, that proof should be given of the rights which had been specifically granted to him, whether he held the earldom " with more " or " with fewer jura regalia," and it is conceived the same course must be adopted to ascertain what rights have been granted to the Duchy.

Next it is said, " The county was ultimately granted as a Duchy, when for the first time a dukedom was created in England in favour of the eldest son of the King, and it is not to be conceived that the new title was to be attended with less dignity, power, and prerogative than the Earls had enjoyed"
   The Officers of the Crown conceive that this paragraph contains, in truth, the whole substance of the case on the part of the Duchy.   It is assumed, without foundation, as they believe, that the Earls of Conrwall had, from the earliest. times, sovereign rights over the whole County of Cornwall, its seashores and seas ; and because previous Sovereigns of England had given these extensive rights to other subjects whom they created Earls of Cornwall, it is assumed that when Edward III. made his eldest son Duke of Cornwall, he must have meant to have given him powers and prerogatives (including in the word prerogative the Sovereign's territorial right to the seashore and bed of the sea), as large as any previous Sovereign had ever given to any former subject.   The Officers of the Crown are unable to understand how such an assumption can be legitimately made, or how it can be legitimately used, either to enlarge or construe the Royal Grant.   It cannot be contended that the mere creation of the title of Duke of Cornwall carried with it any of the Royal property or power within the County of Cornwall.   Titles of honor derived from dominions, counties, or towns did not in the time of Edward III., any more than at present, convey either jurisdiction or property over or in the places whence they were derived.

   The Officers of the Crown are further unable to discover any foundation for the statement that "the county was ultimately granted as a Duchy."   The charters make no such grant, and there is nothing whatever in them, as is submitted, to indicate any such intention ; on the contrary, in the Charter of Creation, the King expressly stated, that in order that it might not be turned into doubt what or how much the Duke ought to have in the name of the Duchy, he had "caused all things in kind" which he willed to pertain to the Duchy to he inserted in that charter.   The creation of the Dukedom had no connexion with the previously existing Earldom.   The last Earl of Cornwall was John of Eltham, brother of King Edward III., and on his death the Earldom became extinct, and the possessions and franchises held by the Earl reverted to the Crown, and became once more part of the Hereditary Revenues and rights of the Sovereign.    On the 17th March, 11 Edw. III., the King created the Duchy of Cornwall, and granted to the Duke for the time being by specific enumeration in detail, not only the greater part of the possessions which had reverted to the Crown on the death of the last Earl, but also estates in various other parts of England, which like the former had previously formed part of the Hereditary Revenues. There are no general words to indicate any intention that the Duke

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was to have all the estates or be entitled to the same rights that the last Earl had, or was entitled to.   There is no reference whatever to the Earl, nor to any Earldom, nor to any previously existing feudal lordship or dominion.   If there had been, it might have been useful to shew what the estates and rights were which the last Earl enjoyed, and whether he was one of the Earls who held the title " with more" or " with fewer" jura regalia than the others.   But unless the Dukedom had some necessary relation to the Earldom there would be no inconsistency in supposing that as large estates in various counties were annexed to the Dukedom which were never enjoyed by the Earls, so the King might have been minded to omit from the enumeration of "all things in kind" which he willed to pertain to the Duchy many or some of the rights, whether territorial or otherwise, which had been enjoyed by some of the Earls.   This after all is on either side a matter of useless conjecture, the question being, it is submitted, not what it is probable the King meant, but what he did, namely, what posssessions and rights of the Crown were annexed to the Duchy by charter or Act of Parliament, and whether the property in question is among them.   Admitting, as indeed cannot be disputed, that the Duke can have nothing but what was vested in the King at the time of the grants to the Duchy, then whatever may have been the extent of the rights of the last Earl or any former Earl, unless any of the charters to the Duchy contain words which are sufficient in law to pass the property in question, whether it be a territorial right or a prerogative right, away from the Crown, and vest it in the Duchy, it has never been transferred from the Sovereign, and Her Majesty is now seised of it de Jure Coronæ.   The slight reference in general terms to the actual charters from the Crown to the Duchy, which is contained in the Statement under consideration, notwithstanding that they form the sole title of the Duchy, is very observable.   It will render it necessary for the Officers of the Crown to advert at some length to those grants, with the view of ascertaining whether any one of them or all of them taken together contain words which by any possibility can be construed as vesting the territory or prerogative right in question in the Duchy.   But they think it may be useful to show first how little foundation there is for the assumption that the property or right in question, or any property or right, was vested in the Earls of Cornwall by any original prescription or peculiar right differing from that of any other grantee of the Crown, or that there was any peculiar law of Cornwall in respect of the royal power, territory, or prerogative.

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In the absence of the grant to the Earl of Moreton and Cornwall, it cannot be certainly known whether anything, or what, was granted with, or besides the specific manors mentioned in Domesday Book.

   By the word "County " is ordinarily meant, as the Officers of the Crown apprehend, not the territory, nor the soil of the County, nor the Prerogative rights of the Crown within it, as seems to be assumed throughout in the Duchy Statement, but simply certain ascertained terms or rents forming the corpus Comitatus, and at this day known as the viscontiel rents, together with the profits of the civil jurisdiction and government of it, through the sheriff.

That the grant of a county is ordinarily to be taken in this restricted sense may be inferred by the practice prevailing during the reign of the Norman kings of letting out at ferm almost all the counties of England, of which abundant proof is afforded by the Great Rolls of the Pipe and other records of that period.    It is, therefore, obvious, if the large sense in which the Duchy Statement interprets the term--." County" be correct, the Crown would not have exercised its jura regalia either in Cornwall or in any of the counties put out at ferm, a conclusion quite at variance with the reasoning in the Duchy Statement as to the special favor and dignity shown to the Earls of Cornwall. But that the ferms of counties did not pass any of the prerogative rights of revenue as vested in the Sovereign, and that they formed only a small portion of the Crown revenue, is manifest from the Records of the Exchequer, which show that, besides the ferms of counties, the Crown was answered separately and distinctly of the profits of its ancient demesnes, its escheats, the temporalties of bishoprics and monasteries,  the feudal returns arising from its demesnes and escheated honors, &c., such as reliefs, wardships, &c., fines and amerciaments in courts of justice, aids. scutages, tallages, customs, and more

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especially of what was called the casual revenue, which comprised treasure trove, waif, wreck of the sea, and chattels of felons and fugitives, &c. (Madox. Hist. of the Exch., cap. 10. sec. 5. &c.)

In describing the form of making up the sheriff's accounts, Madox states that it consisted of several parts, viz., the corpus comitatus, and other profits. The corpus comitatus, he says, consisted of several manors and lands, which, being letten or committed together to the sheriff, made the fund out of which the annual term to the Crown arose. (Hist. of Exch., cap. 28. sect. 2.)

Little is known of the acts of Earl Robert, except as mentioned in the Duchy Statement (folio 4.) that, about the year 1085 (19th Will. I.) he gave to the Monks of the foreign abbey of St. Michael, in Normandy, a site on the island of Mount St. Michael, in Cornwall, on which to found a cell. The Statement proceeds to say (folio 4.), "that in subsequent legal proceedings it is declared that the Earl being lord of the county, was seised of the castle and honor of Launceston, and of Mount St. Michael as appertaining to that castle and honor ; and that the locality shows the great extent of the honor in question.    This honor being expressly named in the Duchy charter."

   This charter of Earl Robert affords evidence that he had obtained a grant of the castle and honor of Launceston, and that Mount St. Michael was part thereof, by virtue of which, and as holding a barony under the Crown, he was enabled to confer Mount St. Michael on the Monks, but not, as it will appear, the franchise of a market.   The following is the substance of the grant :-

" I, Robert, by the grace of God Earl of Moreton, give and grant the Mount St. Michael of Cornwall to God and the Monks of the Church of St. Michael, de periculo maris, with half a hide of land, as free and quit as I held the same, from all customs, plaints, and pleas.   And I appoint that the same Monks, by the grant of my lord the King, have a market there on Friday."   He then grants to them other lands,   "so quit and free of all pleas, plaints, and forfeitures, that the Monks shall answer of no matter of royal justice, unless of homicide alone.   And this grant I have made, these being witnesses," &c.

It is not known when Robert Earl of Moreton and Cornwall died, but it must have been before the 4th Hen. I. (1104), for it is stated by Dugdale that in that year his son and successor William, after flying to Normandy and being brought back a prisoner, was deprived of all his castles and possessions by the King.

The title of Earl of Cornwall is stated to have been next conferred on Reginald de Dunstanville, an illegitimate son of Henry I., in the 5th Stephen (1140).

   Considerable lands in the county, though probably not to the extent of the preceding Earl's possessions, were bestowed on him for in the 12th Hen. II. (1166), it is shown by the Red Book of the Exchequer, he certified his knight's fee to be 215 marks and one third in Cornwall, and in the 14th Hen. II. (1168), on an aid being levied on the King's tenants in capite for marrying his eldest daughter.  

By the Great Roll of the Pipe of the same year it appears that Earl Reginald was assessed on and paid into the Exchequer 225 marks 4s. 5d. for his knight's fees in the counties of Cornwall and Devon.

If the county at this time were a distinct feudal sovereignty or principality, or great lordship vested in him, the certificate of the Earl and his assessment to and payment of the aid levied on him as the King's tenant in capite of the knight's fees in 'Cornwall and Devon are inexplicable.

It was this Earl who is mentioned in the Duchy Statement (folio 3.) as having made a grant to the burgesses of Truro, and which is addressed to "all his barons of Cornwall and all his free tenants, as well English as Cornish," and wherein the burgesses of Truro are described as "his burgesses."

   This language was not unusual with the greater lords or barons, who, having had a large extent of territories granted to them, in their turn before the Statute of Quia emptores, granted out smaller districts to others, to be held of themselves chiefly by knight's service.   In other cases they were to be held by socage tenure, and if granted to inhabitants of the towns, would be held by that description of socage tenure which is called burgage tenure ; and such great lords had and continually exercised the power of granting to their tenants

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various liberties and privileges within their lordships.   Their chief tenants were called barons, as the King's tenants were.

   The same terms, "my burgesses," as are used in this charter are found in a charter of Reginald de Valletort, another of the great barons of Cornwall who lived during the reign of King John and Henry III., and who was lord of the castle and barony of Trematon, which he made to the burgesses of Saltash, situate within that district, as will be seen by the following extract taken from a charter of Inspeximus and confirmation of it by the Crown, in the 5th Rich. II.

"Richard, by the grace of God, &c., we have inspected a charter which Reginald de Valletort formerly made the free burgesses of Essa (Saltash) in. these words :  Know all men, present and to come, that I, Reginald de Valletort, have given, granted, and by this my present charter, confirmed to my free burgesses of Essa (liberis burgensibus meis de Essa) all the liberties and free customs underwritten, which they have had in the time of my ancestors, namely," &c. &c.

   With respect to the charter of Earl Reginald being addressed to "All his barons of Cornwall, and all his free tenants, as well English as Cornish" it is evidence only that the aborigines, being probably treated as a conquered race, it was considered necessary to make special mention of them in order to entitle them to the full privilege of the dominant race.

   A charter of liberties was granted about this time by Robert Earl of Gloucester, another baron of the county, to one Robert Pincerne, to be exercised in the manor of Coverton.

   This charter, as well as that of Reginald Earl of Cornwall and Reginald de Valletort, was confirmed by the king, and seems to establish sufficiently the fact of the early feudal lords being allowed to exercise considerable powers of jurisdiction in their lordships, but which were not of general validity or recognized by the King's courts until they had been ratified by the Crown.   The inference therefore drawn by the Duchy Statement (folio 4.), "that it is clear the Earls exercised the prerogative right of granting by charter, as in the case of the Crown,"  if carried to its full extent would equally apply to De Valletort and the Earl of Gloucester as much as to the Earl of Cornwall.    Innumerable instances of like grants by feudal lords might be found in all parts of the realm.

In the 21st Hen. II. (1175) it is stated in the baronage that this Earl Reginald died, and leaving no legitimate issue, the Earldom became extinct, and all his lands and possessions escheated to the Crown as the superior lord.

Before tracing further the history of the Earldom, it is proper to draw attention to one species of property in this county almost peculiar to it, and essentially connected with its soil, namely, the stannaries or tin mines there, and from a few particulars of their history, some light will be thrown on the main question in this case, namely, to whom the ownership of the soil of the county belonged in early times.

There is no express reference to the tin mines of Cornwall in Domesday Book, not of course from their not having been then discovered, as it is generally admitted that they were worked long before the Christian era, but owing, it is supposed, to this country, after its subjugation by Athelstan, having been overrun and wasted by the Danish invaders not long before the Norman Conquest,

   No legal evidence exists connected with the stannaries until the 9th Ric. I. (1198), in which year it appears by a record of the Exchequer, that certain inquisitions were made by Commissioners appointed by the Crown to determine, amongst other things, the value of the profits and tolls due by ancient custom to the King, upon the weight of tin raised in the mines in the counties of Cornwall and Devon, previously to their being fermed by one William de Wrotham ; and in the next year (10th Ric. I.) and following years, it is shown by the Great Rolls of the Pipe, that William de Wrotham accounted to the Exchequer for the profits of these mines at the rate previously. agreed upon.

   In the next reign the following charter was granted by the King to the tinners of Cornwall and Devon.

[29th October, 3d John (1202.)] " John, by the Grace of God, &c. Know ye, that we have granted that all our Tinners of Cornwall and Devon be free and quit of pleas of natives while they work for the advantage of our ferm or of our new rent, because the tinners are of our own demesnes, and that

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they be free and quit without the disturbance of any one to dig tin, and turves in order to found tin wheresoever in the moors and fees of the Bishops, Abbots, and Earls as they have been used and accustomed, and to buy wood for the founding of the tin without waste in the regards of the forests, and to divert waters at the works in the stannaries, as according to ancient custom they have been used.   And that they be quit in our towns where they dwell of aids and talages while they are in our service.   Witness William, Earl of Surrey, &c.   Given, &c., on the 29th October, in the third year of our reign."

   It is sufficiently clear from these documents, that this mineral produce of the soil of the county had been part of the king's demesnes from the earliest period, and that the Crown by virtue of its dominion and authority over the soil, had given power to the tinners to enter upon the moors or wastes of the Lords and barons to dig for tin and find turf for its manufacture.

It is conceived that such rights in the Crown are irreconcileable with the alleged independence or quasi independence of the county from the sovereignty of England, or with the possession by the ancient Earls of Cornwall of the soil of the county.

Another description of evidence, showing the interest and authority of the Crown in and over the waste lands of this county, consists in its title to and possession of the ancient forests once existing there.

It will be sufficient to show that this prerogative right existed in the King throughout the county of Cornwall as much as in any other county of the kingdom, by a charter of King John, disafforesting the whole county, of which the following is the substance:-

   [22d March. 5th John (1204).]   "John, by the grace of God, &c.   Know ye, that we have dis- afforested the whole county of Cornwall of all things which to forest or foresters pertain, except our two moors, called Faymoore and Gaundewre, with their appurtenances, and except two heaths, to wit, Kissebulloe and Warham, with their appurtenances, so that the whole county of Cornwall, and the men dwelling therein, and their heirs, be disafforested and free, and quit of us and our heirs for ever, of all things which to forest and foresters pertain, except in the two moors and heaths aforesaid, with their appurtenances. And we will that they take all manner of venison which they can obtain in the whole of Cornwall, without the aforesaid moors and heaths, with their appurtenances.   Witness G., Earl of Essex, the 22d day of March, in the 5th year of our reign."

   The moors and lands here excepted were afterwards disafforested by a charter of 22d April, 10th John (1210), wherein it is stated these lands were not part of the King's demesnes, but belonged to the knights and free tenants of the county.

   The extent of ground, subject to the forest laws in this county, as it is known to have been the case in the other western counties, was probably large, and must have been a part of the Crown's possessions from the Conquest to the time of the last-mentioned charter, during the existence of the several Earls of Cornwall between those periods, and the grounds of title in the King to the forests, and the beasts of chase and game within them, which he by his charter for ever relinquished, viz., his prerogative right to the soil, as well as his right to all bona vacantia, will not be overlooked in applying this evidence to the main question under discussion.

   The title and possessions of the Earldom of Cornwall were next enjoyed by Henry FitzCount, the eldest son of Reginald de Dunstanville, the preceding Earl ; but there was some doubt whether he was entitled to them by inheritance, on account, probably, of his alleged illegitimacy.

By the document referred to in the Duchy Statement (folio 5), viz., the record called the "Placitorum Abbreviatio" of the 3d John (1202), it would appear he had not then entered into possession, for the entry is merely that "Earl Reginald had the county of Cornwall and all things which to the lord the King pertained."

   The Earl Reginald here referred to was the father of Henry FitzCount, who died, as already stated, in the 21st Henry II. (1175).   It has been shown that he had a grant of the county.

By the following document, it will be seen that Henry FitzCount had a grant of the custody of the county, with the demesnes, which would oblige him

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to answer to the King's Exchequer for the profits and issues arising from them every year:-

   [l7th September. l7th John (1216)]   "The King to Robert de Cardinan : Know ye that we have committed to our beloved and faithful Henry Fitz Count the County of Cornwall, with the demesnes and their appurtenances, as in bailment until our land shall be in such a condition that we may be able to inquire by our faithful men whether the same county, with the appurtenances, ought to be held hereditarily of us or as our demesnes.   And if according to the inquisition which we shall cause to be made thereof, the same county ought to be held hereditarily of us, we will that, the same be so held of us. But otherwise we will retain the same as our demesne, to be disposed of at our pleasure.   And therefore we command you, that the same county and demesnes, with their appurtenances, without delay you deliver to the same Henry, but send to us one of your men in whom as in yourself ye may confide, who will tell you on our behalf with the letters patent, that you may deliver to him the castle of Launceston, the custody of which we likewise will to be delivered to him.    Witness ourself at Dover, the l7th day of September, in the l7th year of our reign."

[l8th September. l7th John (1216.)]    "The King to Robert de Cardinan, &c.    Know ye that we have committed to our beloved and faithful Henry Fitz Count the castle of Launceston, with the County of Cornwall, in custody of our bailment.   And, therefore, we command you that you deliver the aforesaid castle and county, with their appurtenances, to the aforesaid Henry, as Geoffrey the Monk shall tell you on our behalf.    Witness ourself at Dover, the l8th day of September, in the l7th year of our reign."

There is evidence on record of the King before making these grants having exercised certain acts of prerogative, especially with reference to the coasts and ports of the county ; but as they were before the grant of custody of the county it is not proposed to notice them.   After the last-mentioned period the following grant was made:-

   [11th June. 18th John (1217)]  " The King, &c'   Know ye that we have granted, and by this our present charter, confirmed to God and the church of St. Peter of Exeter, and our Venerable Father, the Bishop, &c. the tithe of the ferm of tin in our counties of Devon and Cornwall.   To hold to him and his successors, bishops, &c.  of us and our heirs in free pure, and perpetual alms.    Also we will that they for ever receive the aforesaid tithes in the same counties, without any impediment, &c., by the hands of those who should have the stannaries or custody of them &c.    In witness, &c., given at Corfe, the 11th day of June, in the l8th year of our reign."

In the 1st Hen. III. the Crown acknowledged this Earl's title to the possessions of his father ; for by letters patent of that year, with the consent of Walter, the Popes Legate, and William Earl Marshal, the King's guardian, he obtained a grant of the county, with all its appurtenances.   To hold as fully as Reginald Earl ot Cornwall held it, and that he was not to be disseized thereof but by the judgment of the King's Court.

Within four years afterwards this earl fell into disgrace, as it will appear by the following precept of the King:-

[27th April  4 Hen III. (1220)]   "The King to the earls, barons' knights, free tenants, and all his faithful men of the County of Cornwall, greeting: Know ye that Hy FitzCount lately coming into our Court hath departed therefrom without the licence of us or our Council, refusing to be obedient to our commands, as he had been enjoined.   And therefore we, firmly enjoining, command you, that hereafter you be in nowise attending or answering the same Henry.   In testimony whereof, &c.   Witness, &c., the 27th day of April in the 4th year of our reign."

The successor to Henry FitzCount in the enjoyment of the Earldom was Richard, the younger brother of the King, who also had the title of King of the Romans, and was subsequently crowned King of Almaine.

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  In Dugdale's Baronage (vol. i. 761.), under the head of "Earls of Cornwall," there is the following notice of this Earl:-

"Richard, a younger son of King John, had this title tempore Henry III.   In 9 Henry III. he had a grant of the custody of the county of Cornwall the shrievalty during the King's pleasure."

This eminent antiquary's authority is referred to in support of what has been previously suggested, that the grant of a county passed only certain ancient ferms and the profits arising from the jurisdiction of the county, described by him as "the shrievalty" because it was through that officer the issues and profits of the county were received."

The following is a translation of the grant, or rather mandate, last mentioned :-

  [13th February. 9 Hen. III. (1225.)]    " It is commanded to all men of the county of Cornwall, that they be attending and answering Richard, the brother of the Lord the King, in all things which pertain to the Lord the King in the county of Cornwall, to whom the Lord the King hath committed the same county, with all things which pertain to the Lord the King in the same county, to support himself in the service of the Lord the King so long as it shall please the Lord the King, saving to the Lord the King his homages and debts, which are due to him in the same county, and his ferms of the said county until Thursday next after Ash Wednesday in the 9th year. Witness, the King at Windsor, the l3th day of February in the same 9th year."

  Some light is thrown by this document on the nature of the issues passing under the grant of a county by the matters excepted, comprising rents or ferms then due to the King, as well as profits or fees of the homages of the new tenants or holders under the Crown, which, though due, had not then been satisfied, or it may be those homages which never passed with the county, being of the nature of  "homage ancestral" which will be hereafter mentioned.

  This grant of 9th Henry III. being a grant of custody only to the King's brother, was enlarged in the 15th year of the reign to a grant in fee, with the stannaries and mines, in the following terms :-

[9th August, 15 Hen. III. (1231.)]    "Henry, King, &c., greeting, know ye that we have given and granted, and by this our charter confirmed, to our beloved brother Richard, Earl of Poictou and Cornwall, all the county of of Cornwall with the, stannary of Cornwall, and all the mines and other appurtenances of the same county, and of the stannary aforesaid, to have and to hold of us and our heirs to the same earl and his heirs, doing therefore to us and our heirs the service of five knights' fees for all service and all custom, and all demand ; wherefore we will, &c., that the same earl and his heirs have and hold of us and our heirs the aforesaid county of Cornwall, with the aforesaid stannary and all mines and other appurtenances of the same county and stannary without any restraint, well and in peace, freely, quietly, and wholly by the aforesaid service as is aforesaid.   These being witnesses, &c. Given &c., the 10th day of August, in the 15th year, &c."

It might be expected that from this time when the King had made an absolute or apparent alienation to his own brother of the whole county, with the stannary of Cornwall and all the mines and other appurtenances of the county and stannary, the most liberal construction would have been put on the terms of the grant between such parties, and the fullest exercise allowed of all the privileges that could be enjoyed under it.

In these troubled times with such a feudatory as Richard Earl of Gloucester, and such a Sovereign as Henry III, we should be prepared to find the most Extensive claims asserted under, or under colour of such a grant as this, which Appeared to give every thing to the earl.

  There is, however, sufficient evidence on record to show that, even during the life of this earl, the Crown exercised its prerogatives throughout the county in various ways ; the following are instances :

19 Hen. III. (1225.)    The King made a grant of confirmation to the Priory of Tywardrith of donations made to the same priory.

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24 Hen. III. (1230.)    The King granted to Henry de Bodrigan the privilege of holding a market in Pendrun. 43 Hen. III (1259.)     The King granted to the Bishop of Exeter free warren and market and fair in Penryn.

And what is especially remarkable, considering the separate dominion of the county and sovereign rights within it, now claimed for the earl, the King, at the instance of Richard King of Almaine  (the then Earl of Cornwall himself), confirmed a grant he had made of a free borough market and fair in his town of Camelford.    The following is the substance of the king's confirmation:-

[12 June 44 Hen. III (1260.)]    "The king to the archbishops, &c.    Know ye that we at the instance of the illustrious King of Almaine, of our special grace have granted, and by this our present charter confirmed, for us and our heirs, that his town of Camelford in Cornwall, which the same King (of Almaine) by his charter hath lately made a free borough with a market every week on Friday, and a fair to continue for three days every year, &c.  remain a free borough with the aforesaid market, fair, and all liberties and free customs to such borough, market, and fair appertaining for ever.    These being witnesses, &c. Given by our hand at Westminster the 12th June, &c"

  In the next year the grant referred to in the under-mentioned charter was made by the Earl of Cornwall, and which the duchy statement (folio 5) thus speaks of:-"A grant was made by Richard Earl of Cornwall to the inhabitants of the county of the right to take sand from the sea shore to fertilize their lands, affording the strongest evidence that at the time of such grant the very species of property about which the present question has been raised, was dealt with as appertaining to the earldom."

The words "appertaining to the earldom" in this part of the duchy statement are a striking illustration of the fallacy which it is submitted pervades the whole statement, by assuming that all the successive earls took or claimed to take under the royal grants appertained to the earldom.    If the creation of Richard Earl of Cornwall had carried with it any territory or rights, why the first temporary grant?  Why the second grant in fee ?

[18th June  45 Hen. III. (1261.)]    "The King to the archbishops, &c.  greeting, whereas our most dear brother Richard, the illustrious King of the Romans, ever princely, granted for himself and his heirs for the common profit of the whole land of Cornwall, that all and singular the inhabitants of the same territory in all the lands of the same King and his men and also through the whole of Cornwall should have and take the sea sand without price.    And through the lands of the same King and his men and through the whole county of Cornwall might freely, peaceably, and without the contradiction of any one heap upon their lands, and through the whole of Cornwall carry the same sand, for the fertility of the same territory, by a reasonable road assigned or to be assigned to them.   So nevertheless that if the same King or those through or upon whose lands the aforesaid sand should happen to be heaped or carried should incur any loss by occasion of such heaping or road, they should be competently satisfied by a reasonable recompense of the same loss to be taxed by consideration of good and faithful men of the same territory, and by the steward of the same King for the time being, or they should previously agree with them upon a certain sum as in the charter of the aforesaid King hereupon made to the commonalty of the same territory which we have inspected, is more fully contained.   We, the said grant holding firm and accepted for us and our heirs, do grant and confirm the same as much as to us pertains as the aforesaid charter, of the same King our brother, reasonably witnesseth.   These being witnesses &c.   Given by the hand of Master Nicholas, Archdeacon of Ely, our chancellor at Guildford the 18th day of June."

  It may be inferred from the terms of the confirmation, that the Earl was considered to have exceeded his authority as on no other ground could it have been necessary for the secure exercise of this prerogative right that the confirmation charter of the King should have been obtained.

It is probable, moreover, that these charters were only a recognition of a previously existing custom or right, in the inhabitants of Cornwall, as it is obvious that neither the King nor the earl, nor both could have legally made

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such a grant de novo as to the lands of the other barons, knights, and land owners in the county.

  But, whatever was the extent of the rights of Richard Earl of Cornwall, it is clear they depended entirely on the language of the specific grant to him, and were not exercised by virtue of any sovereignty supposed to be annexed to or inherent in the earldom, and there are abundant instances during the continuance of this grant of the existence and exercise of the Royal Prerogatives by the Crown.

  The following grants of franchises were made by the Crown during the remainder of the reign of Henry III.

51 Hen. III. (1267.)   "The King granted to Henry de Pomeroy a fair in Tregony, and a fair in Bery."
Same year.    "The King granted to Roger Constantine, a market in Portheness."
52 Hen. III. (1268.)   "The King granted to Reginald de Ferrers a fair in Calwerton."
56 Hen. III. (1272.)   "The King granted to William Champernoun free warren in all his lands in the counties of Cornwall and Devon."

Earl Richard lived until the 56th Henry III. (1272), and it is during the period of his earldom, as well as that of his son and successor Edmund, comprising 64 years, that according to the duchy statement (folio 4), there were no dealings with the property in question by the Crown, in Cornwall, such as by grants of wastes, forests rights, fisheries, or the like, although subsequently to the decease of the latter earl, which happened in the 28th Edw. I. (1300), and which it is said deserves particular notice.   "Grants of royal minerals in Cornwall do appear to have been made by the Crown during the reigns of Edward I. and II. because there was no earl then in existence."

Doubtless during that period the grant to Earl Richard was in force and was respected, and therefore the following examples and illustrations of the extent of the King's rights during the same period are of the more importance as shewing the continued exercise of Royal Prerogative by the Crown.

In the 25th Hen. III. (1241) the King was answered of a thirtieth in the county of Cornwall amounting to 500 marks, which the collectors paid into the exchequer as appears by the great roll of the pipe of that year.
  In the 2d Edw. I. (1294) a commission having been issued to inquire into the rights and liberties of the King subtracted, and also into excesses of sheriffs eschcators, and other bailiffs of the King, juries of the different hundreds in the several counties of England made presentments and returns, which subsequently led to the issuing of writs of quo warranto against those who claimed royal liberties, that their title and right to them might be determined in the King's courts.

The presentments for this county refer to the grants which had been made by King Henry III. and King John of manors, lands, and liberties as well to the Earls of Cornwall as to other lords, and shew that the Crown had ever been the source of all authority and ownership of property and privilege there.

With respect to prerogative rights of the King encroached upon are found the following presentments :-

"Hundred of Frygarshire".
"The jury say that no one hath return or estreat of writs but the King, [or] plea of unlawful distress to be pleaded in the County Court before the sheriff. And that the Prior of Bodmin holds plea of unlawful distress, and hath gallows and the assize of bread and ale in the town of Bodmin, from [what] time and by what warrant they are ignorant."

"Hundred of Penwith".
"Of those who claim liberties.
  They say that John Dalet and the Prior of St. Nicholas, Lords of [Sully]  (Scilly) receive wreck of the sea in their islands, they know not by [whose] warrant.
Of those who have taken goods, &c.
  Also they say that John De Beaupre, while he was sheriff after the [??]    iter of the justices in Cornwall, took and carried away four casks of wine the storehouse of Duthene, of the wreck of the sea belonging to the Lord [the] King, and in the storehouse of Dregnal other four casks, and in the storehouse of Coverton two casks of wine, and thereof did his pleasure and which wine was appraised by the coroner, and delivered to the [s…]

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storehouses to be answered for before the justices.   Also they say that the coroner appraised six casks of wine of the goods of a certain unknown felon who has abjured the kingdom; and afterwards came the said John de Beaupre and took away the said wine and thereof did his pleasure ; also they say that Ely de Bray Havener, of Cornwall, took of wreck of the sea in the storehouse of the marshall of Alverton, to his own use, 2,000 herrings, price 3s., before they were appraised by the coroners of the Lord the King, &c."

[TGG note - the words 'storehouse(s)' in this section have been changed, by hand, to 'tithing(s)'. Also words above shown in [square brackets] are words which need to be checked against the original document]

"Hundred of Poudreshire".
"Also they say that the manors of Moreste, Tibeste, and Brevel were escheats of King Henry, father of the now King, by the death of Andrew de Vitri, and the same King Henry gave the said manors to Richard his brother, Earl of Cornwall, now 40 years past and upwards ; also they say that Edmund Earl of Cornwall and his bailiffs plead pleas of unlawful distress at Lowydyel (Lostwithiel), and have a gallows three years now past"

In the 6th Edward I. (1278,) a special commission issued, directing two of the King's justices to hear complaints made of various encroachments and usurpations committed by the Bishop of Exeter, not only on the rights of the Crown, but also on the privileges of the Earl of Cornwall.   The inquisitions made in pursuance of this commission, shew that the bishop considered the royal prerogatives throughout the county to be vested in him rather than in the King or earl.   In the proceedings which were instituted against the bishop on this occasion, the King's authority and prerogative alone in the county are recognized ; it is not, however, proposed to enter much further into them, as they would extend this summary to undue limits, but the two following entries seem to claim attention:

"Roll 2 dors. Earl of Cornwall.    The earl complains of the bishop that he and his ancestors having a certain passage beyond the water of Esse, Saltash) and receiving money from those crossing the same passage, his men having taken something from the bishop's men for crossing, were excommunicated, to the injury of the Crown of the Lord the King, and disinherison of the aforesaid earl and his damage of 5,000l.   The bishop is in mercy and to satisfy the earl his damages."

The other entry is as follows:

" The Earl of Cornwall complains against Walter, Bishop of Exeter, and his officials. And the attorney-general prosecutes against the said bishop that he hath usurped upon the Royalties of the kingdom, and the King, as well in trying lay causes as in taking the fealties and homages of divers men, and also bonds by his own proper right. To which the bishop answered.   And it was adjourned before the King to hear judgment, &c."

This dispute ended by an agreement being afterwards entered into between the earl and the bishop.

  This entry is extracted chiefly to notice the Observation made on these proceedings in the Duchy statement (fol. 5.) where it is said  "In 6 Edward I. in proceedings against the Bishop of Exeter that he had usurped upon the royalties of the kingdom and the King in Cornwall it was not on behalf of the King, but the earl."

The reverse seems to be the fact, as the earl really sued on behalf of the King for the royalties, in which, as respects jurisdiction, the earl had an interest.

In the 12th Edward I. (1290) an iter was held for this county by the King's justices, at which not only pleas between the inhabitants, amongst whom appeared as a suitor the Earl of Cornwall with other lords of the county, were determined, but on the Crown side presentments were made with respect to the King's prerogative rights and profits, some of which were claimed by lords of manors besides the earl, and without deriving title from any Earl of Cornwall, which it will be for the Duchy to reconcile with the alleged possession by the earls of the prerogative rights in the county.

The following entries are extracted from a vast number of similar present- ments at this iter in only a few of the hundreds, showing the profits of prerogative rights accounted for to the King, such as deodands, goods of felons and fugitives, and persons of felo de se and year day and waste.

12 Edw.I. (1284.) " Pleas of the crown before Solomon de Rochester and others justices itinerant, at Launceston, in the county of Cornwall, from the day of Easter in three weeks,

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  The hundred of Penwith comes by 12 jurors.    Maddock, the chaplain, riding in the tithing of Ludvon near the sea shore, fell from his horse, and was drowned, &c.   The price of the horse 6s. 8d., whereof the sheriff answers.
John de Gaudehome fell from a certain horse in the water of Trewall, and was drowned, &c.   The price of the horse 4s., whereof the sheriff answers.
The hundred of Poudreshire comes by 12 jurors.   Maret Wymsho hung himself in his house in the tithing of Polder, &c.   Judgment of felo de se ; chattels 3s. 7d., whereof the sheriff answers.
John de Tregors fell from his horse and broke his neck, &c. The price of the horse 4s., whereof the sheriff answers.
The hundred of Lyneswiche comes by twelve jurors. William de Chercheton fell from a certain waggon, &c., and immediately died. The price of the waggon and hay 2s.
The hundred of Tryggershire comes by twelve jurors.   Unknown malefactors by night entered the house of Emma de Roswyn, in the tithing of Berner, and there killed the same Emma.   Afterwards it is witnessed by the 12 that Hugh de Semere was taken for the aforesaid death and hanged before the justices, &c.   They had no chattels, but the aforesaid Hugh had land, whereof the year and waste are worth 2s., whereof the sheriff answers.
Afterwards it is witnessed that the aforesaid Hugh was hanged now six years past, whereof for half the time the lands of the same yielded six shillings, which the sheriff received.   Therefore let him answer thereof.
The hundred of Pydreshire comes by twelve jurors.   William, the chaplain of Elwater, fell into a certain water in the tithing of Ponton, and both he and his horse, were drowned.  The price of the horse's hide, 16d., whereof the sheriff answers.
The hundred of Kerrier comes by twelve jurors.   Nicholas of Marthen and Ralph of the same were drowned in a certain boat in the tithing of Measter. &c.   The price of the boat, 2s., whereof the sheriff answers.
Vincent Winnow wilfully drowned himself in the water of Porthewye, &c.; judgment of felo de se, his chattels, 33s. 8d., whereof the sheriff" answers.
The hundred of Westweveleshire comes by 12 jurors.   Two presentments of death by drowning, and the sheriff answers of the value of the coats. John Franceys and John de Trevenedek went together in a boat in the water of Fowey, and John de Trevenedek fell from the boat and was drowned ; the price of the boat, 2s. &c., and because Bernard de Brodbran, the coroner and the 12 concealed the aforesaid deodand, therefore they are in mercy and left to the judgment of the Crown.
Malina de Polruan killed Walter, her husband, in his house of Polruan, and in the tithing of Fawton, and taken and led to the prison of Launceston, and therefore the justices sentenced her to be burnt ; chattels, 1d., whereof the sheriff answers.
The hundred of East Wyveleshire comes by twelve jurors.    Walter Malekyn in a frenzy killed himself in the tithing of Innesworth, &c; judgment of felo de se, his chattels, 5s. 6d., whereof the sheriff answers.
Indictment against Henry le Marshal and Richard Joye, for the death of Gunelda, the wife of the aforesaid Henry, who defend the death, and put themselves on the country.   The jurors say that they are guilty, &c., and that the chattels of the aforesaid Henry are worth 56s. 2d., whereof the sheriff answers.
The same hath lands, whereof the year and waste are 11s. 6d., whereof the sheriff answers, 'and Richard had no chattels.' "

It has been already said that at these iters the rights of the Crown and of those claiming royal liberties were enquired into.   A few of the pro- ceedings of this description at the iter of 12th Edward I. are subjoined in as abridged form as possible, as they seem to throw too much light on the source and nature of prerogative rights viewed in connexion with the Crown and the earl to be passed over.

"The Hundred of (      ).
  [12 Edw.1(1284.)]   Of fees.    The jury say that the ancestors of Robert Fitz Walter held a third part of the manor of Menhelly, and a sixth part of the town of Truro, and six marks of rent with the appurtenances in St. Ives

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in capite of the Lord the King by the service of one knight's fee, and Robert Fitz Walter now holds the same manor, with all others who hold in the same county in capite of the Earl of Cornwall, and they knew not in what manner his homage has been alienated.   And Robert comes and saith that his ancestors held the aforesaid tenements as is aforesaid.   That after the death of Walter, his father, he was within age, and Richard Earl of Cornwall held the same land in the name of wardship.   And after the death of the aforesaid Richard, Earl Edmond, the earl that now is, held the same unto the full age of the same Robert.   And when he came of age the aforesaid earl did not permit him to enter the land aforesaid until he did homage to him thereof.
And because Walter, the father of the aforesaid Robert, died in the homage Of the Lord Henry the father of the Lord the now King, and the aforesaid Robert did homage to the aforesaid Earl of the tenements aforesaid without the licence and will of the Lord the King,   Therefore let the aforesaid land be taken into the hands of the Lord the King, so that the sheriff answer of the issues until the Lord the King shall otherwise command thereof ; And the aforesaid third part of Menhelly is worth in all issues 23l. &c."

Thus distinctly showing that the licence of the King was deemed requisite to the performance of homage to the earl.

The jury present that John de Rivers, the elder, held the manor of Lantyel in the hundred of Poudreshire, and a moiety of the town of Truro, and in the hundred of Keyrer, the moiety of Roswy and the manor of Treglast in the hundred of (   ) &c. in capite of the cLord the King, and John de Rivers the younger now holds the same manors, and they know not by what warrant.
And John was present, and saith that John de Rivers his father gave him the aforesaid manors to be holden of the Lord the King in capite.   And that he entered the same tenements with the assent and will of the same Lord the King.   And hereupon comes Edmund Earl of Cornwall, and saith that the aforesaid tenements ought to be holden of him because the Lord King Henry father of the Lord the now King gave to Earl Richard his father all the county of Cornwall, with all fees within the same county, and this fee was assigned to him, together with other fees of this county.
And John saith that one Richard de Rivers held the aforesaid tenements in capite of the Lord King Henry the father of the Lord the now King, and died in the homage of the aforesaid King Henry.   And after the death of the aforesaid Richard, his grandfather, John, his father, was within age, and in the wardship of the same King Henry.   And the same King gave the same wardship to Phillip Basset, with the tenements aforesaid, until the lawful age of the same John.   And which Philip held the same tenements in the name of wardship of the same John, in the time of Earl Richard ; and   afterwards the same King Henry gave the county aforesaid to the same Richard, his brother ; and he saith that when the aforesaid John, his father, came of age he did homage thereupon to the aforesaid King Henry.   And afterwards with the will and consent of the same Lord King Henry the aforesaid John his father enfeoffed him of the same tenements to be holden in capite of the Lord of the King ; and the aforesaid John his father was never put out of the homage of the aforesaid Lord the King ; and this he prays may be verified by the rolls of the chancery of the Lord the King ; and likewise prays that he withdraw not from the homage of the aforesaid Lord the King ; therefore a day is given to them from the day of St. Michael in one month before the Lord the King wheresoever, &c.   And in the meantime let the rolls of the chancery be searched, and the sheriff and bailiff of the earl are desired that in the meantime they permit the aforesaid John to have peace.
Alice de le Hurne claims to have assize of bread and ale in the manor of Covcrton. and by reason of her bailiwick takes 2d. for the amendment of the assize broken throughout all the hundred, and the Earl of Cornwall takes the third penny.   And the said Alice hath in the same manor stocks, tumbrels, gallows, estray, &c. nbsp; They know not by what warrant.   And Alice comes and saith that she holds the manor aforesaid with the liberties aforesaid of the gift of Robert formerly Earl of Gloucester, to whom the aforesaid manor with the hundred aforesaid belonged, who gave the same with the bailiwick aforesaid and the liberties aforesaid to one Robert Pincerne, her ancestor, by his charter, which she produces, and which witnesseth the aforesaid donation ; also she produces the charter of King Henry the II. the cousin of the Lord the now King, which witnesseth that the same King Henry granted and confirmed to

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Richard Pincerne the manor of Coverton, which Robert son of the Earl of Gloucester his kinsman gave to him for his service, and that he and his heirs should hold the same with all free customs and acquittances appertaining, to the same manor in all things and in all places, to be holden of the same earl and his heirs as freely,  &c.   And thereupon comes William de Gyselham, who sues for the Lord the King, and saith that although the aforesaid earl gave the aforesaid manor with the hundred aforesaid, the same shews nothing of any gift of any King, to whom the donation of a hundred and such royal liberty pertains.   Whereupon he prays judgment.   Afterwards it is found by the confirmation of the aforesaid King Henry that the same King Henry confirmed the aforesaid donation of the aforesaid manor, with the liberties aforesaid, in which is contained the hundred aforesaid.   It is found by the jurors of this hundred, and the knights hereunto elected say upon their oath that the aforesaid Alice and all her ancestors from the time of the making of the donation aforesaid have held the aforesaid hundred together with the manors aforesaid.    And the earl being present saith that the third part of the profit of the same hundred pertains to him as above said.   Therefore let the aforesaid Alice go thereof without day with the manor, hundred, and liberties aforesaid, saving the right of the Lord the King when he will to speak thereof, &c.
Edmund Earl of Cornwall claims to have all the county of Cornwall of the Lord the King in chief, with the hundreds, and all manner of pleas of counties and hundreds view of frankpledge, throughout the whole county, and all money touching view and sheriffs' tourn twice in the year, with all things touching the said tourn, infangenethef, utfangenethef, waif, assize of bread and ale, fairs, markets, warrens, in divers places and in divers manors of the same county, (that is to say,)  Denkeved,  a market every week on Thursday, and a fair yearly on the day of Pentecost, and on the two follow- ing days, at Camelford, one fair by the year, to wit, on the eve and day &c.,  and a market there on Friday every week and at Lostwythyl & fair and market, and at Lyskyret (Liskeard) a fair and market, and another fair at the chapel of the blessed Mary there, and at Esse (Saltash) a market and fair, and at Hellstowe a market and fair, and at Tintagel a market and fair, and in his manors of Trematon, Leskyret, Helston, and Clymeslend, he claims to have warren :   Also he claims to have chattels of felons throughout the whole county, prisage of wines, (that is to say,) one cask before and one behind the mast, and the drying of fish through the whole county, and to hold pleas of mesne lord without writ, and mines of tin and other metals through "the whole county, "together with pleas appertaining to tin; and likewise he claims to have the office of coroner through the whole county, so that no escheator of the Lord the King intrude himself to do anything belonging to an escheator in the county aforesaid ; and likewise he claims to have wreck of the sea through the whole, county, and all these things he saith he hath, and holds in the same state in which Richard his father held and possessed the same in the form in which he now claims them, and saith that as well he as Richard his father, from the time when the Lord King Henry, the father of the Lord now King gave to his same father   the castle of Donkeved, with the whole county of Cornwall, by his charter, &c.,  they have fully used the aforesaid liberties without occupying on the Lord the King ; and hereupon the Lord the King directed his writ to his justices in these words, 'Edward, by the grace of God, &c., to his beloved and faithful Solomon de Rochester and his companions, justices itenerant of the county of Cornwall.' Greeting, we command you of our special grace that you permit our beloved and faithful cousin, Edmund, Earl of Cornwall, to use and enjoy the liberties which he and Richard, Earl of Cornwall, his father, always hitherto have used, so far as pertains to us at your iter aforesaid. Witness ourself at Carnarvon, the 18th day of April, in the 12th year of our reign.'   And hereupon comes William de Gyselham, who sues for the Lord the King, together with Thomas de Saunford, sub-escheater of the Lord the King and as to wreck of the sea and the chattels of felons, saith that the Lord the King is seized of the same, and the ancestors of the same Lord the King always received the issues and profits from all the justices itinerant in the said county, and the sheriffs of the same county have answered of the same at the Exchequer of the Lord the King.   This he prays to verify by the record of the rolls of the Exchequer of the Lord the King; and likewise by the rolls of

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the last iter, and because it is found by the rolls of the last iter of G. de Preston and his companions, the last justices itenerant here, that John de Beaupre, the then sheriff, was charged of all the chattels of felons and fugitives, and all wrecks of the sea presented before, the same justices, and afterwards adjudged by the same justices to the Lord the King ; he was charged to answer thereof to the Lord the King, and now it is found here by the coroner and the knights of the county, that all manner of wreck which, after the last iter come anywhere soever in the same county by the view of the coroner of the Lord the King of the same county was appraised according to the form of the statute thereof made, and by the same coroners in the tithings in which the wreck aforesaid was found was delivered to be kept to the use of the Lord the King until the arrival of , the justices, &c.   Therefore let the aforesaid chattels and wreck remain to the Lord the King until the Lord the King shall otherwise command thereof ; and the sheriff is charged to answer thereof to the Lord the King, &c.   And as to the escheatorship, the aforesaid [Thomas] de Saunford saith, that the stewards and bailiffs do not permit him to enter to perform his office in the same county, nor the same stewards and bailiffs care to admit any writ of the Lord the King concerning the escheatory to the no small damage and grievance of the Lord the King.    And the aforesaid Earl saith that, the office of escheator does not pertain to any escheator, because he saith that the Lord King John granted to him and his heirs, to the men of the same county the custody of the ports and escheats in the said county, so that no other should intrude himself concerning the custody, of the aforesaid ports and escheats except the sheriff of the same county, and the Lord King Henry, the father of the Lord the King afterwards confirmed the same deed and he produces the Charter of the same King John, of the grant aforesaid which witnesseth that he granted to them, &c., in these words :    'Also we have granted to them that the sheriff of the county have the custody of the ports and the escheats, and no others than the sheriff, as in the time of King Henry our father, he was accustomed to have ;"   whereupon he saith that from the time of the said Lord King John the sheriff of the county had the custody of the escheats, and no other foreign escheator of the Lord the King."

It is manifest from this claim and the proceedings under it as well as from all the previous proceedings, that the sole foundation of the right of the then Earl Edmund and his father, was the grant by the King to the Earl Richard, which was alleged to have been a grant of the whole county of Cornwall, as a Lordship of which the earl was the King's tenant, in capite, and that there was no suggestion of any peculiarity in the status of Cornwall or of the Earls of Cornwall, which was to affect the ordinary legal construction of such a grant to a tenant in capite of the Crown.
It is also remarkable with regard to the escheatorship that the right of the sheriff is pleaded as based on a royal charter from King John, not to the earl or lord, but in favour of the men of the county.

By the rolls of proceedings had in the Superior Courts at Westminster of the reign of Edw. I it is shewn that the earl was a suitor, like other persons as he was at the iters of the county.

  "Pleas before the Lord the King at Westminster, in the 14th Edw. I. (1286) Cornwall.   It was presented heretofore at the iter of the justices of the last iter in the County of Cornwall, that the Lord the King ought to have wreck of the sea in the county of Cornwall, and which wreck Edmund Earl of Cornwall now holds, who comes and saith that one Richard his father died seized thereof, and prays judgment if he ought thereupon to answer without the writ of the Lord the King whether his father died seized thereof.
It is said (by the justices) to the same earl that he go thereof without day until the Lord the King by his writ will declare against him thereof."

The duchy statement (folio 5) thus observes on these proceedings:

" By charter granted to Earl Richard King of the Romans no mention is made of the prerogative right to wreck in Cornwall, and it appears that, tempore Edw. I. the Crown disputed the title of Earl Edmund to this right, and proceedings were taken against the earl for this primá facie prerogative right, and which is believed to be the last claim by the Crown as regards Cornwall.   The result entirely supports the duchy view, for the right was adjudged to be in the earl throughout Cornwall."

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  By these proceedings it appears that at the preceding iter, namely, that of the 12th Edw. I., the King was answered throughout the county for these profits ; but this right having been claimed by the earl the question was referred to the King's Court, in which there was no adjudication as to his title, but a decision that he was not required to support his title unless called upon by the King's Writ.
Nothing in truth was decided except as to the form of the proceedings.
It does not appear that anything further was done on the subject.

  Nothing is said or appears from which any conclusion can be drawn as to the grounds on which the claim to the franchise or the claim to the prisage of wine was then based except  this, which is especially deserving of notice, that in the original claim of Earl Edmund before set out, it is put as having been enjoyed  "by him and his father" from the time when King Henry gave to his same father the Castle of Denkeved with the whole county of Cornwall.
Whether the claim was well or at all founded, or how far it would then or would now be sustained in the Courts of Westminster, is a question which the officers of the Crown do not discuss, being, as they conceive, wholly irrelevant to the real question.

Earl Edmund was the last earl that held the county, together with the demesnes and mines in fee.
  Some important proceedings relating to the possessions of the county took place in the 30th Edw. I. (1302), two years after the death of Earl Edmund, and when the possessions which had been held by him had reverted for want of heirs to the Crown.  

The proceedings in question enter into the original title of most of the franchises held by the principal lords and owners of lands long prior to the 30th Edw. I., and will show from whom, whether the Crown, or the earls, these franchises comprising many prerogative rights were derived, in considering which it will not be forgotten that the earldom was full from the 15th of Hen. III. to the 28th of Edw. I.

The following are extracts from some of these proceedings

" Pleas of Juries and Assizes, and of the Crown before John de Berewyk [and others], justices itinerant at Launceston in the county of Cornwall, in eight days of Saint Michael, in the 30th year of King Edward son of King Henry "30 Edw. I.  (1302)."  William de Botereaux was summoned to answer the Lord the King, by what warrant he claimed, (amongst other liberties,) infangonethef, view of frankpledge, assize of bread and ale in his manor of Penhel, a market and fair in his manor of Lananton, free warren in all his demesnes of Trenedhen, Trewarnill, and Lananton, and assize of bread and ale, and a fair in his manor of Boterel's castle, &c."

William de Botereaux pleads a charter of the then King, and which has been found to be of the 24th year of his reign, for market, fair, and free warren, and which he produced, and judgment is given for him.
A similar writ was issued at the suit of the King against the Bishop of Exeter for claiming infangenethef, assize ; of bread and ale, and taking estrays and waifs in his manors of Wictone, St. Germains, and Potten ; also of assize and estrays in his manors of Tregaer and Penryn ; also for claiming free borough market fair and free warren in all his demesne lands in the county.
The bishop pleads as to market fair and free warren, a charter of King Hen. III., which was granted in the 43rd year of that King to his church, and his right is allowed by the attorney-general.
The Abbot of Beauleau was also summoned to answer the King for the exercise of various liberties, namely, "acquittance of suit of shires and hundreds sheriffs, tourns, and to have soc and sac toll and theam, and infangenethef, in the town of St. Kaneran in Cornwall, and also to have chattels, fugitives, and persons condemned, and amerciaments of his own men, and view of frankpledge and acquittance of toll throughout England."
The abbot pleads a charter of King John, and a confirmation thereof by King Hen. III. the former being dated in the (   ) year of King John to his predecessors, which grants were allowed, and judgment was given for him.
A similar writ of quo warranto was issued against the Abbot of Clive, for claiming view of frankpledge, assize of bread and pillory waifs, infangenethef, &c. in Pokewell and Tregalston, and wreck of the sea in all his demesne lands in the same towns,

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The Abbot pleads a grant of King Hen. III. to his predecessors, which is of the 11th year of that reign.   It was allowed and judgment given accordingly.
Henry Tyas was summoned to answer the King by what warrant he held a fair and market in the town of Mousehole and free warren in Alwarton.
He pleads a grant of the then King of the same liberties which was made in his 28th year. It was allowed and judgment accordingly.
Henry de Pomeroy was also summoned to show by what warrant he held a market and fair, also toll and assize of bread and ale in Tregune.
He pleads a charter of King Hen. III. to his father of the same liberties, dated in the 51st year of that King, which is allowed and judgment given in his favour.
John de Arundel was also summoned by the King to show why he claimed market and fair in the manor of Modeshole.
He pleads title by inheritance to the manor from Ralph his ancestor, who had purchased from the heir of Walter de Raleigh, and to which Walter King Hen. III. by his charter had granted the liberties aforesaid, which is found to be dated in the 23rd year of his reign.
The attorney-general who sued for the King saith, that when King Hen. III. granted liberties to any one he granted them to him and his heirs ; that as the same John claims the manor by hereditary right from Ralph his ancestor, who bought the same from Walter, de Raleigh (to whom King Hen. III. granted the said liberties) as a stranger.   He prays judgment if such royal liberties purchased in that manner can be used without a special grant thereof to him or his ancestors by the Lord the now King or either of his progenitors Kings of England.   Therefore it is considered that the aforesaid John go thereof without any day saving the right of the Lord the King when he will speak thereof.
The charter here pleaded was made in the 23rd Hen. III.
Reginald de Ferrers was also summoned to show the ground of his title to a market and fair in his manor of Calerton.
He pleads a charter of King Hen. III., granting the same liberties to him which was made in the 52d year of that King.   It was allowed saving the right of the King.
The Prior of Bodmin was also summoned to show by what right he claimed to have gallows, pillory, soc and sac, thol and theam, view of frankpledge, assize of bread, &c. in Bodmin, and also to have waif throughout the whole hundred of Powdeshire, assize of bread, &c., pleas of unlawful distress in Alderstowe, and also a free fishery through the water of Aleyn and Egle, &c.
The abbot pleads a prescriptive title to these liberties, and the jury find in his favour.
The Attorney-General however seems to have traversed to this finding, as appears by the following entry on the record:-
And John de Mutford, who sues for the King, saith that this plea touches a certain right annexed to the Crown of the Lord the King, and hath its commencement within memory and not from time, whereof the memory of man is not to the contrary, &c.   And he saith that the prior hath not return of writs and prays judgment.
William de Bodrigan was also summoned to show by what warrant he claimed a market and fair in the town of Loo, and view of frankpledge, tumbrel, and pillory, and assize of bread and beer there.
He pleads possession of the same for the term of his life of the inheritance of Henry de Bodrigan, who appears and voucheth the same ; it is pleaded also that the same Henry was summoned at the preceding iter to show his title to the same liberties, and that he then produced a grant of King Henry III. to one Henry de Bodrigan, his great grandfather, which was made in the 21st year of that King, of the market and fair.   These privileges were thereupon allowed to him.
Thomas de Pridyas was also summoned to show by what warrant he claimed to have soc and sac, thol and theam, infangenethef and view of frankpledge, assize and a market and fair in his manor of Truru, and that his burgesses of Truru should not plead in the hundred court or in the county court, and that they be quit of giving toll throughout Cornwall at fairs and markets and other immunities.

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The proceedings under this writ of quo warranto are of some length, as there were certain joint lords of the manor who were summoned with Thomas de Pridyas, and their descents are set out.
In respect of the liberties and immunities claimed for the burgesses of Truro, the charter of Reginald Earl of Cornwall, conferring the same, already noticed in page 10 of these observations, is pleaded and produced, which it is stated in the plea was confirmed by charters of King Henry III. and of Edward I., both of which were produced and judgment passed against the Crown.   The grant of confirmation by Edward I. was made in the 13th year of his reign.
Several other writs were issued against lords of liberties in the county which are not noticed, as a title by prescription was pleaded in support of them, which plea, although it is grounded on a presumed grant from the Crown to a former lord or owner, of the franchises, would not show distinctly the time when the grants were made, and that they bore date while the Earls of Cornwall held their possessions, which the duchy statement (folio 4) appears to consider alone conclusive.

  It thus appears that during the judicial investigation which was made at a time when all the rights of the Earl of Cornwall were vested in the King himself, into the titles of the principal lords of manors and owners of liberties throughout the county of Cornwall, all those alluded to are found to take their origin from the Crown as the source of prerogative rights, and not one from any Earl of Cornwall.   The various grants from the Crown produced on this occasion, or most of them, were made during the existence of Richard and Edmund, Earls of Cornwall, and furnish, it is conceived, a conclusive answer to the duchy statement (folio 4.) that from 19 Hen. III. (1235) to 27 Edw. I. (1299) during the times of Earls Richard and Edmund, the Crown made no grants of jura regalia in this county.

It is also important to observe that these writs of quo warranto were brought in the name of the King as King and for encroachments on His Royal Prerogatives, and not in right of any Earldom, of Cornwall, or as usurpations on the prerogative rights of the earldom, which would have been the form of the writ if any such rights pertained to the earldom as a county palatine, whether this honor were in possession of an earl or of the Crown by abeyance.

There is one instance, indeed, of an Earl having conferred by charter some immunities, but it has been shewn the grant in question was not allowed by the court without proof of its having been sanctioned and confirmed by the Crown.

On the question of the royal confirmations of Earl Reginald's charter just referred to, the duchy statement observes (folio 5.), "that the charter granted by the Earls, were recognised by the Crown as Royal Charters, and were made the subject of lnspeximus and Confirmations as in cases of Crown charters.- That this course was exactly adopted as to charters granted by earls palatine, see inspeximus charter of 8th December, 28 Hen. III., reciting and confirming a charter of Ranulph, Earl of Chester, and that it was remarkable that in both cases an Earl of Cornwall and an Earl of Chester were in existence at the period of the confirmations taking place."

  The remark, perhaps, may be allowed here, that this course, viz., of confirmation was also exactly adopted as to charters by earls not Palatinate, and if it so happened that the Crown confirmed a charter of the Earl Palatinate of Chester during the life of the latter, it is conceived that such an act of the Crown was considered necessary to give validity to an excessive exercise of the power of the Palatinate.   In the case of the Earl of Cornwall who clearly was not an earl palatine, it is impossible to concur in the Duchy statement, and view this act of the Crown as proof of the earl's sovereignty.   On the contrary, it can only be taken as a proof of his dependance and subjection to the Crown, as much as other lords holding of it, whose charters to their tenants it was necessary should receive the sanction of the Crown to give them due effect and operation.   It has been already shown that the charter of. Reginald de Valletort to his burgesses of Saltash of certain liberties and immunities, received the royal approval and confirmation.   But in addition to this answer to the Duchy statement on this point, it will be apparent, that if the Crown's confirmation of a charter is to give a royal character to the charter confirmed, there would be no limit to such insignia of the possession of

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prerogative rights, for nothing was more common than for the Crown to confirm the inspeximus grants made by private founders and donors to corporations, religious houses, and other bodies.

  Further acts of the Crown, during the existence of the last Earl Edmund, shewing its retention and exercise of prerogative rights in this county, can be referred to, of which the following are instances.

"14 Edw. 1. (1286.)   The King granted to Oliver de Denham free warren in his demesne lands of Cardiman and Botardell.
20 Edw. I  (1292)   The King granted to Philip D'Aubeney power to hold market and fair in his manor of Pulrinan.
21 Edw. I  (1293)   In this year a writ was issued to the sheriff of Cornwall to enquire whether the profits of year day and waste of land in Trenoson, belonging to one Henry Peers of Trenoson aforesaid, convicted and executed for felony, had been answered for to the King.  The inquisition found, that the said Henry Peers had been convicted of felony before the justices at Launceston, and that he possessed certain freehold lands of Cornish measure of which the year day and waste belonged to the King, and were worth 3s., whereof the tithing of Wyttleton was bound to answer before the justices itinerant.   And the jury found that the aforesaid Henry Peers held the same of Wm. Wyse the younger.   And that the aforesaid tithing then had the lands.
24 Edw. 1. (1296)   The King granted to William, son of William Botereux a market in Nante, and the franchise of free warren in Nante and Trevylhan.
25 Edw. I. (1297.)   In this year, a commission issued to Gilbert de Knovell and others, to enquire, in conjunction with the Sheriff of Cornwall, if certain persons particularly mentioned had acted contrary to the form of the King's proclamation in the county, with respect to wool, and a return was accordingly made.

The most important document in the history of the possessions of the Earls of Cornwall (if any document anterior to the creation of the duchy itself is really of any weight, or admissible in the construction of the grants to the latter), is the inquisitio post mortem, taken on the death of Earl Edmund.

At that time, everything that Earl Edmund died seized, or possessed of, was vested in the Crown, so that the officers of the Crown could by no possi- bility have had any motive for misstating, or understating what the possessions and rights of Earl Edmund were.

By the inquisition (29th Edw. I. c. 303.), it is found that he

"held in his demesne, as of fee, on the day on which he died, the castles, manors, and tenements underwritten, that is to say, &c.,. and the pleas of the county of Cornwall, with the hundreds of Petershire, Padershire, Tregershire, Lisneuyth, Stratton, Estinestshire, Westmenelshire, Kerner, and the third part of the hundred ofPenwith, with the issues of mines, of tin, wreck of the sea, the prisage of wine, with the fee farms underwritten, in the county aforesaid, of the Lord the King, in capite by the service of two knights' fees."

  It is wholly immaterial now to enquire whether the inquisitio post mortem was accurate or inaccurate, or to enquire whether Earl Edmund had by good title all that was there enumerated, or whether he had not, by good or some title, more.   The King having then every thing in him, either in his previous sovereign right, or by escheat on the death of Earl Edmund, this inquisitio post mortem is conclusive as to what was then believed and taken to be the real extent and nature of the possessions of Earl Edmund ; and if the subsequent royal grants are to be construed with reference to any supposed intentions on the part of the Crown to give all that Earl Edmund had, this inquisitio post mortem is conclusive as to what was represented to the royal grantors, and must have been believed by them to have been the extent, limit, and nature of Earl Edmund's rights.   Now there is no trace in the inquisitio post mortem of the possession of the county of Cornwall as a territory, or of the sea-shore, or of any territory of which, by any possible legal construction, the sea-shore could be considered as part or parcel.   The manors and lands, the jura regalia of which he was possessed are enumerated in minute detail, and no trace of his being possessed of any others or of his being possessed of those so enumerated as in right of a palatinate or quasi palatinate can be found.

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  The period in the history of the earldom, subsequent to the death of Earl Edmund, although it restored to the Crown every prerogative right and territorial possession in the county it might have previously alienated, and must be considered important in connexion with the claim of quasi regal and independent rights and possession in the Earls of Cornwall, is only thus cursorily alluded to in the duchy statement (folio 5).

"Subsequently to the death of Earl Edmund, without male issue, in 1299, the earldom was granted by Edw. II. to Piers Gaveston, but the vicissitudes of his earldom make it impossible to form any decided opinion as to the privileges bestowed on or rights exercised by him."

It is then observed.

"The next earl was John de Eltham, youngest brother of Edw. III. created 1331, who held the earldom for a few years only.  There are some grounds for supposing the grant to him had fewer jura regalia but this is not a matter of much importance, and as he was for nearly all his tenure of earldom under twenty-one, there is not likely to be any evidence bearing on the question."

The possessions which had been held by the last Earl of Cornwall were kept in the King's hands from the 28th Edw. I., when the earl died, until the end of this Kings reign.

  In the 1st Edw. II.  the county of Cornwall, with other possessions, was committed to the custody of John de la Hyde, by the following grant:-

"Trinity Commissions,  1 Edw. II. (1307.)   Concerning the county and stewardship of Cornwall
The King on the 25th day of June hath committed to Thomas de la Hyde the county of Cornwall with the appurtenances, and also the castles of   Tentagel, Restormal, and Trematon, and all lands and tenements, and the stannary and coinage in the same county, to be kept so long as the King shall please, so that of the issues thereof arising he answer at the King's exchequer.   And it is commanded to the archbishops, &c., that they be attending the same Thomas as sheriff of the county aforesaid and keeper of the castles, lands, and tenements of the stewardship, stannary and coinage aforesaid, in those things which to the office of sheriff and the same custody pertains.   Witnesses, &c."

The county with the King's demesnes stannaries, and mines as they had been enjoyed by the preceding earl, were granted in the same first year of Edw. II., to Piers de Gaveston, and subsequently regranted to him and Margaret his wife, who was the widow of Edmund, the late earl, in the 3d year of the same King on his return from banishment.

  The grant by this Sovereign to his favorite is in very comprehensive terms. It is a grant of  

"Our whole county of Cornwall, with the castles, towns, manors hundreds, demesnes, homages and services of free tenants, rents, villenages, villeins, with their chattels and sequels, knights' fees, advowsons of churches, abbies, priories, hospitals, chapels, fairs, markets, warrens, wrecks of the sea, and all other liberties, free customs, rights, and other things whatsoever, to the aforesaid county belonging; and also the office of the sheriff of the said county, the stannary and all mines of tin and lead, which were of Edmund, late Earl of Cornwall, in the county aforesaid ;"

and after some other specific grants of manors elsewhere the grant proceeds :

"And also all other castles, towns, manors, lands, and tenements, which the aforesaid Edmund had and held on the day of his death, &c., &c.

  [8 Aug. 3 Edw. II. (1310) ]  By this charter the King regrants the premises to the Earl and Margaret his wife, and the heirs of their bodies, in the same form as in the preceding grant.

That the King was not restricted by his grant of the county and other possessions in Cornwall from exercising his prerogative rights is shewn by the following grant.  

  "[25th Nov 1. 4th Edw. II. (1311]   The  King &c.,  know ye &c., that we have granted to John de Wylington,   free warren in all his demesne lands of Fourton and Lanteglos in our county of Cornwall, so that no one &c., witness, &c."

By the attainder of Piers de Gaveston, the county and other possessions of which he was seized were forfeited, and once more formed part of the possessions of the Crown and continued to be held by it until disposed of in the manner already mentioned.

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  The same King afterwards made a grant to his Queen Isabel, as follows: -

" [25th July. 11 Edw. II. (1319) ]    The king, &c.- Know ye that we have granted and assigned to Isabel, Queen of England, the shrievalty of Cornwall, and all our castles, towns, manors, lands, and tenements in the county of Cornwall, to hold according to the extent thereof made or to be made so long as it shall please us with hundreds, views of frankpledge, liberties, free customs, knights' fees, advowsons of churches, religious houses, and hospitals, and all other things to the aforesaid shrievalty, castles, towns, manors, lands, and tenements in anywise belonging as fully and entirely as we held the same in our hands, and that she shall have all fines, ransoms, amerciaments of all men and tenants of the same castles, towns, manors, lands, and tenements, and with the fees of the same, and the issues, forfeitures, and all other things which can pertain unto us of year, day, and waste, forfeitures and murders in whatsoever our courts ; the same men and tenants shall happen to be amerced as well before us and in our chancery as before our treasurer and barons of the Exchequer, &c., or that such issues, murders, forfeitures year, day, and waste shall happen to be adjudged, so that the same our consort by the hands of the sheriff of the county aforesaid may levy, receive, and have the fines, ransoms, and amerciaments of the men and tenants aforesaid, and the issues, forfeitures, and all things which can pertain to us of year, day, and waste, forfeitures, and murders in the same castles, towns, manors, lands, &c., and the fees of the same, &c., and that she shall